TMI Blog2014 (7) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... alteration of the terms and conditions of the contract and is only clarificatory. Payment or non-payment of excise duty by respondent-BCCL on the input material/machinery is a serious disputed question of fact. The respondent-BCCL has taken a stand that the contractor has been submitting bill for reimbursement of service tax including other contracts of other organizations, in which, similar order of transportation contracts are included in the lump-sum CENVAT which the contractor claimed and thus, the respondent-BCCL insisted on furnishing documentary proof of payment of service tax by cash remittance by the contractor. Thus whether the contractor has any CENVAT credit in relation to the present contract agreement with BCCL is also a question of fact which has been seriously disputed by the respondent-BCCL. Since as per terms of the contract, alternative remedy for settling the dispute is available to the parties, and since we have already held that the action of the respondent-BCCL in issuing the corrigendum/amendment is not arbitrary, these writ petitions cannot be entertained and the writ petitions are liable to be dismissed - Decided against the petitioner. - W.P. (T) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase No. Name of company Name of work Work amount W. P. T. No. 257 of 2013 M/s. Avinash Transport Nit No. BCCL/GM(CMC)/ F-HEMM-0S/2009/733 dated June 8, 2009 ₹ 1,61,13,52,070 W. P. T. No. 262 of 2013 M/s. BKB Transport Pvt. Ltd. Nit No. BCCL/GM(CMC)/ F-HEMM-OS/1034 dated November 26, 2008 ₹ 42,71,93,600 W. P. T. No. 859 of 2013 M/s. Sadbhav Engg. Ltd. Nit No. BCCL/GM(CMC)/ F-HEMM-OS/2011/1043 dated October 25, 2011 ₹ 2,87,75,82,720 W. P. T. No. 860 of 2013 M/s. VIN-Balaji JTT(JV) Nit No. BCCL/GM(CMC)/ F-HEMM-OS/2010/1079 dated July 23, 2010 ₹ 55,30,93,200 W. P. T. No. 906 of 2013 M/s. Calcutta Industrial Supply Corporation Nit No. BCCL/GM(CMC)/ F-HEMM-OS/2010/1071 dated July 21, 2010 ₹ 65,40,85,000 W. P. T. No. 2701 of 2013 M/s. Dhanbad E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Company Pvt. Ltd) filed a writ petition, being W.P. (T) No. 1548 of 2012. However, during pendency of the writ petition, by letter dated April 18, 2012, BCCL intimated to all concerned that the said corrigendum/amendment dated March 2, 2012 and said letter dated March 16, 2012 were kept in abeyance vide decision dated March 31, 2012 taken by Functional Directors of the BCCL. In view of the same, the court vide order dated May 2, 2012 dismissed the said writ petition with a liberty to file fresh petition, if occasion arises. 5. By communication dated January 4, 2013, the petitioners were informed that the decision of Functional Directors of BCCL dated March 31, 2012 was revoked with immediate effect and accordingly notice of recovery of reimbursement of the service tax already made of the tax paid through CENVAT and stoppage of further reimbursement was issued. The petitioners were served with the impugned decision dated January 4, 2013 vide letter dated January 5, 2013 by BCCL informing the decision to stop reimbursement of service tax paid through CENVAT and also informing about recovery of the reimbursement already made to the petitioner of the amounts of service tax paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the respondentBCCL. 9. The impugned corrigendum/amendment is challenged mainly on the following grounds: (i) BCCL entered into a contract mentioning therein clause 11(vii) that service tax will be reimbursed by BCCL to the petitioner-contractor and the same cannot be unilaterally altered, restricting reimbursement of service tax amount paid only in cash or by cheque or through e-payment and such unilateral alteration of the terms of the contract is arbitrary and liable to be quashed. (ii) General terms and conditions of the contract/tender document do not restrict reimbursement of service tax only to the net amount payable directly through cash or cheque or through e-payment. (iii) Averments in para (11) of the counter alleging payment of excis duty on the input materials/machineries and the alleged double payment is baseless. (iv) Even though the dispute pertains to the terms of the contract, in view of the arbitrary action of the public sector undertaking-BCCL in unilaterally altering the terms of the contract, the impugned corrigendum/ amendment is liable to be quashed by the writ court. 10. The learned counsel for the respondent-BCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii). All duties, taxes and other levies payable by the contractor under the contract or for any other cause as applicable on the last date of submission of tender shall be included in the rates, prices and the total bid price submitted by the bidder. All incidentals, overheads, etc., as may be attendant upon execution and completion of works shall also be included in the rates, prices and total bid price submitted by the bidder. However, such duties, taxes, levies, etc., which is notified after the last date of submission of tender and/or any increase over the rate existing on the last date of submission of tender shall be reimbursed by the company on production of documentary evidence in support of payment actually made to the concerned authorities. 13. Payment conditions.-Payment will be released in the manner as indicated in 'special terms and conditions for the contract' (enclosed). The provision as stipulated at clause 11(vii) of general terms and conditions of the tender document, if service tax is legally payable by the tenderer in relation to this contract, the same will be reimbursed by BCCL on production of documentary evidence of having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g recovery made may be intimated . 16. The Functional Directors considered the same and in order to have clarity in the system, the Functional Directors approved incorporation as a corrigendum/amendment to the clause in respect of service tax for different tenders and different existing contracts already awarded. The corrigendum/ amendment to clause in respect of service tax was incorporated in different tenders, which reads as under: 1. The quoted offer should be exclusive of service tax. Service tax if it is legally payable by the contractor under this contract, will be reimbursed by BCCL on production of original challan of having made cash remittance of such service tax to the service tax authority. 2. Original challan will be defaced by management by putting a stamp across the challan. Defacement to be done with the following stamp: Reimbursed the service tax For Rs............... For W.O. No Dated............ of BCCL GM(F)I/c AFM Area............... 3. Copies of original challan duly attested by General Manager (F) I/c will be retained for subsequent use as per requirement. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause in respect of service tax for different tenders was only clarificatory of clause 13 of the work order and clause 11(vii) of the contract agreement. According to the respondentBCCL such corrigendum/amendment to clause in respect of service tax was essential in the light of fact that since March, 2011 coal has become excisable goods and accordingly, BCCL has been availing of CENVAT credit on the amount of the service tax paid/reimbursed on services taken. Further case of BCCL is that since clause 11(vii) of the general terms and conditions of the tender document stipulates that all duties, taxes and levies are included in the quoted rate of the contractor, no reimbursement of service tax is legally admissible against the payment claimed through CENVAT credit as in that case it will become a case of double payment to the contractor. It is in this context the corrigendum/amendment dated 2nd March, 2012 to clause in respect of service tax was issued clarifying that the service tax will be reimbursed only if paid through cash remittance or e-payment. In our considered opinion, the corrigendum/amendment dated March 2, 2012 does not amount to unilateral alteration of the terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pays by way of cash and not through CENVAT credit. 23. On behalf of the petitioners it was then contended that the averment contained in paragraph 11 of the counter-affidavit that excise duty has already been paid to the contractor is misconceived and false. Learned senior counsel submitted that the averments made in paragraph 11 of the counter-affidavit that the excise duty paid on the input materials are paid back to the contractors through their bill against the executed quantity of work are erroneous and no material has been placed to show that excise duty has been paid by BCCL on the machineries/input materials. The learned senior counsel further contended that in the tender submitted, the contractor was not required to quote any rate/price for the equipments, spares, etc., to be used in carrying out contractual job and there was thus no scope for the contractor to include the cost of machineries, spares, etc., in the bills raised by it for executing the contractual work and, therefore, there could be no scope for making payment to the petitioner the cost paid on machinery, spares, etc. 24. The above arguments are advanced not keeping in view, clause 11(vii) of the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, the same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The court has imposed upon itself certain restrictions in the exercise of this power (See Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC 1) and this plenary right of the High Court to issue a prerog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineer-in-chief for settlement of such dispute/claim within 30 days of the cause of dispute/ claim, failing which no dispute/claim of the contractor shall be entertained by the company. It is further provided that thereafter the contractor may approach the court of law. The tender notice also provides in clause 32.1 that the matter relating to any dispute or difference arising out of the tender or subsequent contract awarded, based on the bid shall be subject to the jurisdiction of the Dhanbad Court only . The letter dated February 12, 2010 whereby the award of the subject work was approved in favour of the petitioner, contained a condition that any dispute or claim arising out of the contract, the parties to the contract shall adjudicate their claims through the civil court of Dhanbad Court only and no other court will have any jurisdiction in the matter. 31. In State of U.P. v. Bridge Roof Co. (India) Ltd. reported in [1997] 104 STC 78 (SC); [1996] 6 SCC 22, the honourable Supreme Court held that the existence of an effective alternative remedy which is provided in the contract itself, is a good ground for the court to decline to exercise its extraordinary jurisdiction u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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